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Universal Arguments and Particular Arguments on Abortion Rights Stuart Chinn Maryland Law Review Volume 75 | Issue 1 Article 9 Universal Arguments and Particular Arguments on Abortion Rights Stuart Chinn Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Fourteenth Amendment Commons, and the Law and Society Commons Recommended Citation 75 MD. L. REV. 247 (2015) This Symposium is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. UNIVERSAL ARGUMENTS AND PARTICULAR ARGUMENTS ON ABORTION RIGHTS STUART CHINN∗ I. INTRODUCTION Since Roe v. Wade,1 much academic commentary has investigated the merits of Due Process Clause-based defenses of abortion rights relative to Equal Protection Clause-based defenses.2 That this topic of discussion per- sists is indicative of both the complexity of the legal, political, and social issues involved, and the continuing legal uncertainties surrounding abortion rights. While the prospect of a definitive overruling of Roe has perhaps lessened over time, the contours of the right to an abortion clearly remain contested.3 As a result, both proponents and opponents of abortion rights continue to contemplate how best to conceptualize the rights at stake and the various issues involved—both as a matter of legal or doctrinal argu- ment, and as a matter of sociopolitical argument. © 2015 Stuart Chinn. ∗ James O. and Alfred T. Goodwin Senior Fellow, Kenneth J. O’Connell Senior Fellow, University of Oregon School of Law. Thanks to Mark Graber and other participants of the 2015 Maryland Constitutional Law Schmooze for feedback and comments on this Paper. 1. 410 U.S. 113 (1973). 2. Since the Supreme Court’s focus has been on Due Process Clause-based defenses of abortion rights, much academic commentary has emphasized the virtues of grounding abortion rights in equality and the Equal Protection Clause either along with, or in place of, Due Process Clause-based arguments. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1337–62 (2d ed. 1988); Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291, 311–52 (2007); Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985); Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PENN. L. REV. 955 (1984); Eileen L. McDonagh, My Body, My Consent: Securing the Con- stitutional Right to Abortion Funding, 62 ALB. L. REV. 1057 (1999); Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281, 1308–22 (1991); Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 EMORY L.J. 815 (2007) [hereinafter Siegel, Sex Equality Arguments]; Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 351–80 (1992) [hereinafter Siegel, Reasoning from the Body]; Cass R. Sunstein, Neutrality in Constitutional Law (with Special Reference to Pornogra- phy, Abortion, and Surrogacy), 92 COLUM. L. REV. 1, 31–43 (1992). 3. See, e.g., Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding the federal Partial-Birth Abortion Ban Act of 2003); see also, Kelefa Sanneh, The Intensity Gap: Can a Pro-Life Platform Win Elections?, NEW YORKER, (Oct. 27, 2014), http://www.newyorker.com/magazine/2014/10/27/intensity-gap. 247 248 MARYLAND LAW REVIEW [VOL. 75:247 My goal in this Paper is to explore the nature of the arguments in de- fense of abortion rights since Roe. However, in categorizing and differenti- ating between these various arguments, I depart from the commonly em- phasized distinction between due process and equal protection arguments. Rather, the distinction that I focus on is between what I will call “universal” and “particular” arguments—two categories of argument that cross-cut the familiar due process-equal protection divide.4 What is to be gained by conceptualizing and categorizing abortion rights arguments as universal, particular, or some hybrid of the two—as op- posed to categorizing them according to some other set of descriptive la- bels? This analytical framework offers three primary contributions. First, in line with others who are concerned with the broader social and political acceptability or unacceptability of abortion rights, I believe that we might illuminate such issues in different ways by thinking in terms of the univer- sal and particular. That is, by categorizing these abortion rights arguments in ways outside the familiar constitutional doctrinal labels, we may be able to illuminate the political implications and consequences of certain rhetori- cal choices in new ways. Thus, the initial task of defining and categorizing various arguments on abortion rights is the subject of Part II of this Paper. In Part III, I begin the task of clarifying the rhetorical trade-offs between deploying more universal and more particular forms of argument. A second contribution of the analytical framework builds upon the preceding point: much of my focus is on illuminating some of the distinc- tive rhetorical appeal of particular-arguments on abortion rights that, I be- lieve, have been relatively underemphasized in the literature.5 I begin to press this concern in Part III of the Paper, but I set forth a more expansive set of arguments in Part IV. In Part IV, I situate particular-arguments on abortion rights alongside more general and broader claims of “societal seg- mentation” that have appeared episodically in American political and legal thought. Situating particular-arguments on abortion rights alongside legal and political appeals to societal segmentation will help demonstrate the rhe- torical force of rights claims and political appeals that directly reference the conditions, hardships, and circumstances distinct to a subset of the polity. I argue that so long as such appeals to entrenched differences or unique cir- 4. I should note that since my focus is on arguments in defense of abortion, I pay relatively little attention in this Paper to the array of arguments that are deployed surrounding the rights of the fetus or the state’s interest in potential life. 5. By referencing the rhetorical appeal of different legal and political arguments in this Pa- per, I should emphasize that I am referring to the rhetorical appeal of these arguments among those Americans who engage with political issues or read Supreme Court opinions. Thus, while I believe I am focusing on a not-insubstantial subset of American citizens—both in terms of num- bers and especially in terms of political and social influence—I am admittedly focusing on a select portion of the American polity. 2015] ARGUMENTS ON ABORTION RIGHTS 249 cumstances are made in the context of a sufficiently robust political com- munity, these targeted appeals can still have substantial political and norma- tive appeal. Finally, a third contribution of employing this conceptual framework is that it allows for conceptualizing the abortion rights debate in ways that link it to broader themes in the examination of American political identity and community. I will focus on this last point in the concluding portion of Part IV. II. DEFINING AND CATEGORIZING ARGUMENTS ON ABORTION RIGHTS In discussing gender inequality and competing approaches to securing legal remedies for this inequality, Catharine MacKinnon states that “[e]quality approaches are often faulted as less powerful because [they are] inherently relative, while other approaches like liberty or security or privacy are thought more powerful because [they are] absolute.”6 A few sentences later, she describes equality claims as having a “contextual nature.”7 MacKinnon speaks to commonly held views about the nature of these re- spective types of claims when she identifies equality claims as rela- tive/contextual and liberty claims as absolute. Yet this distinction draws too sharp a line between liberty-based and equality-based rights claims, at least as they have appeared in judicial opinions. By way of illustrating this, let me introduce my own set of competing terms in the abortion rights con- text. They do not correspond perfectly with MacKinnon’s dichotomy of “absolute” vs. “relative/contextual,” nor do the modes of argument I refer- ence necessarily divide well into liberty/due process-based and equal pro- tection-based arguments. Still, I believe they speak well to some of the in- tuitions underlying the contrast she articulates in the preceding statement.8 Consider then a dichotomy between “universal” rights claims and “particu- lar” rights claims.9 6. MacKinnon, supra note 2, at 1326. 7. Id. 8. The terms that I use are “universal” and “particular” modes of argument, and while not perfect analogues, they align fairly well with the distinction MacKinnon has in mind with “abso- lute” and “relative/contextual.” By “absolute,” MacKinnon likely has in mind a rights claim that is unqualified and that is not subject to variation or a different formulation depending upon differ- ent circumstances or a given situation. That is, an “absolute” right retains its form and substance across all situations, circumstances, and applicability to all subjects; this aligns well with the na- ture of what I call a universalistic rights claim. In contrast, MacKinnon’s use of the terms “rela- tive” and “contextual” suggests a rights claim that is qualified by the context in which it is made; it thus implies a rights claim that may be limited to a particular set of circumstances and not appli- cable to other situations, circumstances, or certain subjects. This also aligns, to a degree, with my use of the term “particular” in the discussion below. 9. These terms are commonly used in the literature on political identity and political com- munity, though, of course, my use of them in the context of abortion rights has some distinct ele- 250 MARYLAND LAW REVIEW [VOL.
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